October 8, 2003
Center for the Study of Democracy
Presentation by Mr. Walter Schwimmer, Secretary General of the Council of Europe
I appreciate the opportunity to participate in this event which is devoted to the ombudsman institution in your country. This discussion coincides with the 25th conference of European Ministers of Justice hosted by the Bulgarian Government, and precedes the entry into force of the Law on the Ombudsman institution on 1 January 2004.
Ombudsmen are today an integral part of the institutional architecture of a modern democracy, and I therefore welcome the introduction of this institution in Bulgaria.
As an extra judicial means of solving disputes and conflicts, ombudsmen have a decisive place in our societies, to solve problems that can arise in relations between the public authorities and the citizens. It is an institution which can only function under democratic rule, because it implies that public authorities accept the consequences of their power and their acts can be subject to mediation.
This is great progress for countries where relations between the State and the citizens were marked by authoritarian attitudes, where one could be deprived of freedom when questioning an act or a decision of the public authority.
Within its expertise, the Council of Europe has contributed in many countries to the adoption of adequate legislation to introduce the ombudsman institution as an instrument for the promotion and protection of human rights. The ombudsman can make a significant contribution to effective protection against human rights violations, offering the individual an accessible and prompt means of redress.
The ombudsman should always be complementary to the courts, and not a substitute for independent and effective justice. However, experience has shown that even with the best political will, it can take time to complete the reform of the judicial system and to build up a critical mass of trained judges able to fully achieve their role as independent adjudicators and guarantors of human rights. Here, the ombudsman institution can fill the gap in the judicial protection of human rights provided to individuals during the critical transition process.
It can serve as a catalyst for ensuring that international human rights standards are integrated at the national level. It can provide recommendations and reports, in particular in the context of grievances brought for consideration or advice to Governments regarding legislation and policies.
This applies particularly to the European Convention on Human Rights and the case law of the Court of Human Rights, which are directly applicable in domestic law. The ombudsman can thus serve as a privileged interface between international human rights norms and domestic legal norms. By solving disputes on human rights violations at a national level, ombudsman institutions also contribute to limiting the number of appeals to the European Court of Human Rights.
In the more specific field of good governance, ombudsman institutions contribute to strengthening control over the administration, opening up bureaucracies to public scrutiny and above all, making them accountable. This is in many countries a radical break with tradition, as well as a constant reminder of the rule of law and above all of the limits of discretionary power. The ombudsman can therefore be a powerful instrument in generating good governance and the rule of law. It can change the way the administration behaves.
The ombudsman institution is, therefore, a major element in the process of democratic stabilization, precisely because its raison d'etre and tasks are closely inter-related with the notions of human rights, rule of law, good governance, transparency, pluralism and equality.
The Council of Europe has for many years recognized the importance of the institution of the ombudsman as an important non-judicial means of complementing the judicial protection of human rights at the national level in a democratic society based on the rule of law, including the protection of the individual in his/her dealings with administrative authorities.
The Council of Europe has been active in this field since the early eighties through a range of activities, the office of the Council of Europe Commissioner for Human Rights including standard setting, co-operation and awareness activities, as well as through the development of networks between ombudsmen.
Building on the 1993 Vienna Declaration of the World Conference on Human Rights, which stressed the importance of national institutions for the promotion and protection of human rights, the Committee of Ministers of the Council of Europe further adopted Recommendation R (97) 14 encouraging the creation of independent national institutions for the protection and promotion of human rights.
At the Summit of Heads of State and Government held in Strasbourg in October 1997 the idea of instituting was approved and at the 104th session of the Committee of Ministers on 6-7 May 1999 in Budapest a resolution setting out the Commissioner's terms of reference was adopted, requiring the Commissioner to promote education and awareness of human rights in the member States, to encourage action by all national human rights structures and national ombudsmen or similar institutions and to co-operate also with other international organizations for the promotion and protection of human rights.
This major and significant action of the Council of Europe in the development of ombudsman institutions comes indeed under the priority objective of the Council of Europe, which is the promotion and protection of human rights.
As co-sponsor of the Stability Pact's Task Force on Good Governance, the Council of Europe has been involved from the outset in the conceptualization, programming and implementation of the Project on Independent National Human Rights Protection Institutions, including the ombudsman institution.
The project focused on three main areas:
- Building political support and increasing knowledge about Ombudsman and related institutions;
- Enhancing the legal basis, the functions, the methods and capacity of the (existing) ombudsman and related institutions;
- The specific roles of the ombudsman and related institutions.
Striking examples of the successful achievements of the Project are the People's Advocate in Albania and the Kosovo Ombudsperson Institution. The latter developed into a strong and credible institution for all communities in Kosovo, employing Albanian and Serbian lawyers, receiving a growing number of complaints from all sectors of the population and enjoying unrivalled press coverage.
Following the demise of the Good Governance Task Force, the Council of Europe has continued its work on supporting the ombudsman institution under its own co-operation programs. Given the crucial function of independent non-judicial mechanisms for the protection of human rights, the adoption of an ombudsman law and institution became part of the commitments to be taken by new member States upon accession.
We note with satisfaction the adoption of the Law on the Ombudsman by the Parliament of Montenegro in July 2003 which is expected to be followed in the very near future by the adoption of the Ombudsman Law in Serbia. The Ombudsman Law of "the former Yugoslav Republic of Macedonia" was adopted earlier this year.
The Law on the Ombudsman was adopted in Azerbaijan in 2002 and the same is expected in Armenia in the very near future.
The establishment of an ombudsman institution was one of the priorities set by our Parliamentary Assembly under its monitoring procedures in respect of Bulgaria (Resolution 1211 of 26 January 2000). I very much welcome the work done by the Center for the Study of Democracy in elaborating an Action Plan for the implementation of the Law on the Ombudsman in Bulgaria.
Your Center has been at the origin of the creation of the Bulgarian ombudsman, and the work done by your experts has been most useful to the Venice Commission for the final drafting of the Law.
Finally, I would like to draw your attention to the very recent Recommendation 1615 (2003) of the Parliamentary Assembly on the Ombudsman Institution and the essential characteristics of the ombudsman to be ensured at national level in order to provide this institution with operational effect - the first pre-requisite being that all these essential characteristics of the ombudsman should be established at constitutional level.
I therefore encourage taking the necessary legislative and legal measures to implement the new Law on the Ombudsman in the light of the established European standards. I would in particular insist on the participation of the ombudsman in the legislative process on human rights matters.
As a last word, let me express my great satisfaction at the introduction of an ombudsman in Bulgaria. I wish this new institution much success. It is another landmark in the consolidation of the democratization process in Bulgaria which is on its way to full European integration.